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GIFT  OF 


THE  LAWYER 


By 

c.  E.  MCLAUGHLIN 

president 
California  Bar  Association 


THE  LAWYER 


But  for  human  selfishness  there  would  be  no 
necessity  for  human  law.  Passion,  pride,  avarice, 
ambition,  appetite  and  other  manifestations  of  man's 
thirst  for  pleasure,  power,  and  self -gratification  con- 
stitute the  elements  ever  waging  relentless  war 
against  the  potency  of  municipal  law. 

Government,  necessarily,  involves  limitation  of 
mental  and  physical  power  to  gratify  selfish  desire, 
and  through  the  ages  men  have  resisted  surrender  of 
any  measure  of  natural  advantage.  This  never- 
ceasing  struggle  between  human  selfishness  and 
human  law  is  evidenced  by  the  creation  and  destruc- 
tion of  many  governments,  the  enactment,  nulli- 
fication, and  repeal  of  many  codes.  Unselfish  men, 
of  great  ability,  have,  for  centuries,  been  engaged  in 
an  effort  to  frame  and  effectuate  a  perfect  system 
of  law  protecting  the  weak  from  the  strong  and  pro- 
moting the  general  good.  But,  ever  and  anon,  these 
efforts  have  come  to  naught  through  the  selfishness 
of  individuals. 

Governments  organized  to  protect  and  secure 
human  rights  have  been  used  by  tyrants  to  increase 
and  intensify  human  wrongs.  Laws  beneficent  in 
conception  and  expression  have  been  converted  into 
instruments  for  increase  and  perpetuation  of  power 
sustained  by  imposition,  injustice,  and  cruel  oppres- 
sion. 

Earnest  men  have  spent  their  lives  framing  laws 
for  weal  of  humankind,  only  to  suffer  at  the  hands 
of  those  in  whose  behalf  they  labored. 

326029 


MA/oJ 


f  »    b      *i   »      «. 

.*  s  V  J :  J 


The  Lawyer 


During  the  existence  of  the  Boman  Bepublic,  a 
struggle  between  the  plebians  and  the  patricians 
engrossed  the  attention  of  Home's  ablest  men.  The 
plebians  fought  stubbornly  for  alleviation  of  their 
wrongs  and  vindication  of  their  rights.  None  sec- 
onded their  efforts  more  ably  than  Spurius  Cassius, 
author  of  the  first  great  agrarian  law.  Yet  he  was 
hurled  from  the  Tarpeian  rock,  and  as  he  fell  he 
heard  the  cheers  of  the  plebians  applauding  his  un- 
just and  terrible  punishment,  secretly  contrived  by 
the  patricians,  whose  power  he  sought  to  curb. 

Factions  successful  in  forcing  enactment  of  laws, 
limiting  or  withdrawing  special  privileges  enjoyed  by 
others,  have,  in  turn,  exercised  special  privileges,  and 
ruthless  perversion  has  often  characterized  the  con- 
duct of  men  entrusted  with  power  to  enforce  right- 
eous laws.  The  twelve  tables  of  Eome,  attesting  in 
every  line  the  wisdom,  humanity,  and  unselfishness 
of  its  f ramers,  was  law  of  Eepublican  Eome,  invoked 
as  warrant  for  the  arrest  of  Virginia,  saved  from 
the  lust  of  Appius  Claudius  by  the  dagger  of  her 
father,  who  had  pleaded  in  vain  for  legal  redress. 
Through  maladministration  of  this  law  citizens  were 
deprived  of  life  and  despoiled  of  property  with  im- 
punity, vice  laughed  at  virtue,  and  privilige  exulted 
in  the  wrongs  which  brought  wealth  and  happiness 
to  the  few,  and  poverty  and  woe  to  the  multitude. 

The  prostitution  of  this  great  code  by  men  select- 
ed at  the  instance  of  the  plebians,  was  viewed  with 
equanimity  by  them  when  its  perversion  affected  pa- 
tricians, and  the  latter  class  calmly  encouraged  its 
misapplication  when  rights  of  plebians  were  in- 
volved. Only  the  shameful  treatment  and  martyr- 


The  Lawyer 


dom  of  Virginia  aroused  the  whole  people  to  full 
sense  of  the  terrible  consequences  resulting  from  mis- 
application of  beneficent  laws.  History  abounds 
with  similar  instances.  Selfishness  has  ever  been 
alert  to  vantage  ignorance  and  indifference,  and 
tyranny  has  pointed  to  law  as  vindication  for  acts  of 
rapine,  cruelty,  and  spoliation.  Persecution  has  re- 
joiced while  tears  and  blood  were  shed  and  shrieks 
and  lamentations  heard  from  victims  of  perverted 
law.  Craft  and  cunning  have  oftentimes  been  suc- 
cessful in  having  laws  intended  to  EESTEAIN  con- 
strued to  FUKTHEK  selfish  aims. 

The  infinite  variety  of  selfish  purposes  has  ever 
been  the  source  of  perplexity  and  error  in  the  enact- 
ment and  enforcement  of  human  law. 

The  failure  of  governments  and  codes  during  the 
course  of  history  has  been  caused  by  man's  ignorance 
of  himself,  his  needs,  his  interests.  The  average  man, 
representative  of  the  vast  majority,  has  never  com- 
prehended the  basic  legal  principle  that  restriction 
of  individual  DESIEE  is  essential  to  the  protection 
and  preservation  of  individual  EIGHTS.  The  fact 
that  law,  restraining  gratification  of  HIS  desire, 
likewise  restrains  the  desire  of  OTHEES  having 
greater  physical  and  mental  strength,  seldom  or 
never  occurs  to  him.  He  should  readily  understand 
that  removal  of  restraint  preventing  HIM  from  grat- 
ifying HIS  passion,  greed,  or  lust  would  unleash 
desire  of  OTHEES  having  greater  power  to  compel 
gratification.  But,  failing  to  see  what  seems  so  ap- 
parent, ignoring  the  proposition  that  general  secur- 
ity is  dependent  upon  compulsory  self-denial,  the 
ordinary  man  lends  willing  ear  to  designing  men  who 


The  Lawyer 


promise  benefit  to  him,  knowing  that  by  pandering 
to  his  desire  they  may  gain  Ms  assistance  in  obtain- 
ing undue  and  unjust  advantage  for  themselves.  In 
tMs  way  arrogant  selfishness,  whose  vantage  is 
usually  a  detriment  to  the  humble,  has  enlisted  the 
aid  of  the  latter  to  secure  privileges  which  made  the 
condition  of  their  dupes  intolerable. 

This  selfish  attribute  of  man  has  ever  furnished 
the  opportunity  of  ignorance  and  unscrupulousness. 
The  misguided  zealot  who  promises  happiness  when 
chaos  shall  reign  appeals  to  the  dissatisfied,  at  war 
with  conditions  which  have  failed  to  bring  individual 
benefit  to  them.  Self-seeking  demagogues  enlist  sup- 
port  by  promising,  as  palliative  for  existing  wrongs, 
born  of  special  privilege  to  one  class,  the  transfer  of 
special  privilege  to  another  and  larger  class.  The 
student  of  history  is  impressed  with  the  great  truth 
that  man's  effort  to  better  his  condition,  and  bring 
about  his  own  regeneration,  has  had,  for  its  most 
serious  obstacle,  the  aid  of  vantage-seeking,  selfish 
friends.  He  finds  that  a  large  number  of  splendid 
governmental  systems  have  been  reared  and  de- 
stroyed, innumerable  laws  beneficial  and  wise  en- 
acted, ignored,  and  repealed;  and  critical  analysis 
of  cause  and  effect  leaves  no  room  for  doubt  that 
demagogues  have  been  responsible  for  more  of  such 
mischievous  results  than  tyrants  or  ignorant  fa- 
natics. The  profit-seeking  friend  of  the  people  has 
ever  been  the  greatest  enemy  of  progress  and  of  law. 

Man  is  not  omniscient.  Finite  limitations  en- 
compass Mm.  Compelled  to  frame  laws  dealing  with 
human  imperfections,  he  has  never  framed  and  never 
will  frame  a  perfect  code.  Each  effort  to  control 


The  Lawyer 


himself  by  legal  enactment  will,  to  some  extent,  be 
thwarted  by  the  very  attribute  he  seeks  to  curb  and 
control.  Groping  blindly,  through  inability  to  com- 
prehend his  greatest  permanent  good,  the  best  he  can 
do  is  to  avoid  the  warning  light,  marking  hidden  rocks 
of  individual  selfishness,  strewn  with  legal  wreckage 
accumulated  through  the  centuries ;  melancholy  evi- 
dence that  man  is  prone  to  bless  or  damn  law  accord- 
ing to  the  benefit  conferred  upon  him  individually. 
Compelled  to  rely  on  men,  having  natural  impulses 
and  weaknesses,  to  frame,  expound,  and  execute  the 
law,  disappointments  many  and  grievous  will  attend 
his  efforts,  for  law  deals  with  the  great  human  prob- 
lem and  the  universal  sin — human  selfishness.  Great 
minds  of  all  times  and  peoples  have  labored  assidu- 
ously to  solve  this  great  problem.  Eepeated  failure 
has  not  daunted,  nor  base  ingratitude  discouraged 
them.  Steadily,  surely,  the  great  lawyers  of  ancient 
and  modern  times  have  continued  to  plead  and  plan 
for  the  advantage,  security,  and  benefit  of  men,  most 
of  whom  have  struggled  against  each  advance  re- 
pressing or  limiting  individual  desire,  aspiration  or 
passion. 

The  task  of  the  lawyer  has  ever  been  difficult, 
and  never  have  difficulties  been  greater  than  now, 
especially  in  our  own  land.  Past  experience  will  aid 
in  the  solution  of  ordinary  legal  problems,  but  ex- 
traordinary legal  problems,  arising  from  new  and 
rapidly  changing  conditions,  challenge  the  genius, 
originality,  and  patriotism  of  the  American  lawyer. 
Changes  wrought  by  advancing  civilization,  scien- 
tific achievement  and  invention,  and  general  dissem- 
ination of  knowledge  will  tax  his  patience  and  ability 


The  Lawyer 


to  the  utmost.  Our  fathers  were  not  perplexed  by, 
nor  will  their  methods  aid  in  the  solution  of  great 
problems  involved  in  the  control  of  public  service 
corporations  furnishing  light,  heat,  power,  and  trans- 
portation to  the  public.  They  were  not  confronted 
with  questions  arising  from  close  commercial  and 
social  relations  existing  between  men  and  communi- 
ties widely  separated,  through  the  medium  of  mes- 
sages instantaneously  transmitted. 

The  long  struggle  between  plebian  and  patrician 
presented  problems  easy  of  solution  compared  with 
questions  involving  conflicting  rights  of  employer 
and  employed,  and  the  conflict  of  these  rights  with 
rights  of  third  persons,  arising  out  of  modern  indus- 
trial and  commercial  intercourse  and  interdepend- 
ence. New  standards  of  living,  with  constantly 
changing  ideals  and  environment;  development  of 
newly  discovered  resources;  universal  education; 
and  growth  of  great  corporate  bodies,  controlling 
immense  volumes  of  wealth,  combine  to  broaden  the 
scope  of  modern  legislation,  and  increase  the  respon- 
sibility of  those  charged  with  the  enactment,  enforce- 
ment, and  exposition  of  the  law. 

The  genius,  patriotism,  and  courage  of  the  law- 
yer has  never  failed  mankind  in  any  emergency.  His 
liberty,  fortune,  and  blood  have  frequently  and  will- 
ingly been  sacrificed  for  human  weal.  Since  Solon 
and  Clisthenes,  men  of  noble  birth  and  riches,  forced 
an  unwilling  aristocracy  to  submit  to  democratic 
constitution  and  laws  in  Athens,  down  to  the  time 
when  a  great  French  lawyer  sacrificed  health  and 
fortune  in  defense  of  the  rights  of  the  condemned, 
despised,  and  execrated  Dreyfus,  lawyers  have  been 


The  Lawyer 


true  to  oath  and  trust  never  to  forsake  the  cause  of 
the  defenseless  or  oppressed. 

How,  then,  will  the  lawyer  meet  the  great  emer- 
gencies and  perform  the  great  duties  confronting 
him  at  this  time?  That  he  will  face  this  labor  with 
clear  vision,  lofty  courage,  unyielding  patriotism, 
and  add  additional  lustre  to  the  glorious  record  of 
our  profession,  I  have  no  doubt.  He  must  not  only 
contend  with  new  questions  arising  from  new  con- 
ditions, but  must  face  and  foil  the  most  dangerous 
form  of  opposition  ever  encountered  by  law.  The 
struggle  of  law  for  many  centuries  was  against 
PHYSICAL  STKENGTH  exerted  to  defy  and  over- 
throw it.  But  now  secretly,  intelligently,  and  insidi- 
ously man's  MENTAL  strength  is  engaged  in  astute, 
resourceful  effort  to  remove,  evade,  and  delay  re- 
straints which  law  seeks  to  place  upon  avarice  and 
greed.  Special  interest  shamelessly  brings  to  the 
struggle  all  the  energy  and  skill  of  purchased  ability. 
The  seductive  allurements  which  temptation  affords 
are  thrown  about  those  entrusted  with  the  enact- 
ment, enforcement,  and  exposition  of  the  law.  Paid 
agents  brazenly  swarm  wherever  suggestion  or  argu- 
ment finds  legislative  listener.  If  an  obnoxious  law 
cannot  be  defeated,  it  is  amended,  if  possible,  so  as 
to  render  it  unconstitutional  or  otherwise  abortive, 
and  courts  all  too  frequently  bear  the  burden  of 
blame  properly  attributable  to  secret  machinations 
in  committee  room  or  lobby. 

Unfortunately  some  judges  seem  unable  to  compre- 
hend the  cardinal  truth  that  the  purpose  of  law  is  to 
curb  human  selfishness,  vindicate  right,  and  redress 
wrong ;  and  precedent,  resting  atilt  upon  precedent, 


8  The  Lawyer 


finally  topples,  compelling  attention  to  great  cardi- 
nal principles  of  law  which  should  never  have  been 
overlooked.  Ingratiating,  sycophantic  deference, 
mimics  obeisance  in  the  temples  of  justice,  and  com- 
panionship of  judges  is  sought  by  those  who  seek  to 
make  friendship  the  forerunner  of  favor.  A  false 
environment  and  atmosphere,  intended  to  blind  and 
deceive,  supplements  false  logic,  and  the  modern 
judge  must  indeed  be  wary  if  contamination  soils  no 
ermine  or  makes  suspicion  attach  to  no  reputation.  A 
false  precedent,  based  on  imperfect  or  erroneous  con- 
ception of  legal  principles,  is  unreliable  guide,  espe- 
cially when  adroit  ability  seeks  to  make  such  prece- 
dent lean  farther  afield  the  true  foundation  upon 
which  judicial  decisions  should  always  rest.  Some 
judges  have  ignorantly,  a  few  designedly,  brought 
just  criticism  upon  our  courts,  but,  in  the  main,  they 
have  been  true  to  the  high  responsibility  and  trust 
reposed  in  them. 

Unfortunately,  this  cannot  be  said  of  some  mem- 
bers of  our  profession,  for  it  must  be  admitted  that 
lawyers  of  great  ability  have  participated  in  pollu- 
tion of  the  source  of  law,  and  have  given  full  measure 
of  their  ability  to  bring  about  initial  distortion  or 
ultimate  misconstruction  of  laws  inimical  to  inter- 
ests employing  them.  It  is  a  common  saying  that 
the  modern  lawyer  is  at  once  adviser  and  business 
agent  of  clients.  But  a  lawyer  cannot  be  true 
to  his  trust  and  engage  in  practices  tending  to  pre- 
vent enactment  or  enforcement  of  wholesome  re- 
straints upon  selfish  desire,  and  any  member  of  our 
profession  thus  dishonoring  it  should  be  taught  that 
a  man  cannot  be  at  once  the  EXPONENT  and 


The  Lawyer 


OPPONENT  of  law.  A  lawyer  may,  of  course, 
be  adviser  and  business  agent  without  impropriety ; 
but,  if  his  agency  involves  skilful  pilotage  of  business 
bark  along  channels  forbidden  by  the  letter  and 
spirit  of  law,  his  cruise  should  end  in  the  peniten- 
tiary, where  such  advisers  and  business  agents  be- 
long. In  such  a  case  his  profession  should  be  neme- 
sis rather  than  shield.  No  man  deserves  more  se- 
vere condemnation  than  the  lawyer  who  uses  his  ed- 
ucation and  talents  to  undermine,  defy,  or  destroy 
the  system  of  law  he  has  sworn  to  uphold  and  defend. 

Eecent  disclosures  prove  that  men  and  cor- 
porations controlling  important  special  interests 
have  contributed  large  sums  of  money  to  aid  candi- 
dates for  high  office  in  state  and  nation,  and  the 
suspicion  is  general  that  such  contributions  were  not 
prompted  by  disinterested  patriotism.  The  afore- 
mentioned and  other  considerations  have  caused 
widespread  discontent  affording  opportunity  for 
pseudo  friends  and  open  enemies  to  interpose  time- 
worn  obstacles  and  objections  to  government  and 
law.  The  overthrow  of  our  whole  system  of  govern- 
ment is  openly  advocated,  the  adherents  of  this  doc- 
trine becoming  stronger  numerically  day  by  day. 
Those  who  believe  that  unbridled  license  constitutes 
liberty,  and  hence  advocate  elimination  of  municipal 
law  altogether,  are  not  idle  and  are  preaching  and 
spreading  their  infamous  propaganda  openly.  The 
demagogue,  ever  the  friend  of  the  class  having  the 
greatest  voting  strength,  the  pretended  ally  of  every 
faction  promising  aid  to  his  ambition,  rants  in  de- 
nunciation of  those  vieing  with  him  for  place  and 
power,  and  promises  panacea  for  existing  ills  in 


10  The  Lawyer 


something  to  gratify  individual  selfishness,  age-old 
enemy  of  human  law. 

Not  infrequently  we  hear  clamorous  demand  for 
radical  departure  from  our  system  of  government, 
conceit  and  ambition  combining  in  advocacy  of  many 
changes,  seductive  when  viewed  superficially,  but 
extremely  dangerous  when  studied  and  analyzed. 
Men  and  principles  long  revered,  have  suddenly  be- 
come victims  of  vehement  denunciation*  This  clam- 
orous cry  for  sweeping  change,  unfortunate  results 
of  which  echo  through  the  ages  from  Eome,  Athens, 
Carthage,  to  the  latest  of  sudden  revolutions,  is  al- 
most invariably  heard  from  lips  of  those  least  to 
be  trusted  if  change  in  our  system  is  necessary  or 
desirable. 

Amid  all  this  din  and  confusion,  the  calm  voice 
of  law  calls  the  American  lawyer  to  full,  unselfish, 
courageous  performance  of  duty  to  his  country  and 
its  institutions,  the  cornerstone  and  superstructure 
of  which  are  cemented  and  sanctified  by  sacrificial 
blood  and  tears. 

Neither  seductive  blandishment,  specious  plea, 
nor  arrogant  selfishness,  on  the  one  hand,  nor  the 
rant  of  the  demagogue,  the  alluring  promise  of  a  new 
propaganda,  or  the  denunciation  of  the  anarchist  on 
the  other,  should  confuse,  beguile,  or  intimidate  him. 
Keeping  steadily  in  mind  the  prime  purpose  of  law, 
his  eyes  fixed  on  the  beacon  light  of  human  expe- 
rience, his  courage  intensified  by  the  example  of 
many  great  lawyers,  who  either  stemmed  a  danger- 
ous human  tide  or  fell  victim  to  its  thoughtless  fury, 
his  voice  should  be  heard  above  all  clamor  demand- 
ing that  there  be  neither  perversion,  evasion,  misap- 


The  Lawyer 


11 


plication,  nor  dethronement  of  law.  Kecognizing  that 
changing  conditions  necessitate  changes,  he  should 
aid  in  the  just  and  proper  amendment  of  laws  and 
constitutions,  but  his  highest  duty  is  to  resist  and  foil 
the  efforts  of  selfish  men  to  make  law  an  instrument 
promoting  and  protecting  selfish  advantage,  rather 
than  a  shield  and  sword  protecting  and  conserving 
human  rights. 

The  latter  task  will  require  constant  vigilance 
and  exercise  of  all  the  power  and  concentration  of 
the  best  intellects.  The  opposition  will  be  tireless 
and  aided  by  the  keenest  minds,  willing  to  prostitute 
their  talents,  and  endanger  all  that  sacrifice  has 
wrought  for  reward,  which  selfishness  is  always  able 
and  ready  to  offer.  It  will  require  moral  courage  of 
no  mean  order  to  purge  our  profession  of  hypocrit- 
ical, sycophantic,  oath  breaking,  treason  baiting 
men,  who  stand  ready  to  serve  the  highest  bidder,  no 
matter  how  venal  or  vile  his  cause,  to  lay  aside  truth, 
honor,  self-respect,  humanity,  and  weal  of  organized 
society  at  the  bidding  of  those  who  desire  to  frus- 
trate, cloud,  and,  if  possible,  defeat  the  design,  pur- 
pose, and  object  of  law. 

The  men  who  thus  throw  their  manhood  at  the 
feet  of  those  requiring  prostitution  of  honor  and 
talents  have  found  it  very  profitable,  although  con- 
temptible, to  do  so,  and  it  has  not  always  been  the 
weakest  minds  that  succumbed  to  great  temptation 
or  performed  basest  service  for  great  reward. 

Law  is  not  a  combination  of  quibbles  and  tricks 
designed  to  promote  dishonesty  and  sharp  practice, 
but  a  system  intended  to  compel  honesty,  truthful- 
ness, candor^  and  fair  dealing  among  men.  There- 


12  The  Lawyer 


fore,  as  prelude  to  the  full  and  faithful  performance 
of  duties  ancl  responsibilities  now  resting  upon  mem- 
bers of  our  profession,  we  must  win  back  the  confi- 
dence and  respect  of  men  by  proving  the  lawyer 
worthy  of  confidence  and  respect. 

We  cannot  longer  permit  the  few  to  besmirch  the 
many,  nor  can  we  at  this  juncture  be  neutral,  without 
being  false  to  cause  and  country.  Imbued  with  the 
patriotic  fervor  of  great  lawyers  whose  names  il- 
luminate the  pages  of  history,  whose  services  and 
sacrifices  furnish  an  incentive  and  inspiration,  the 
American  lawyer  should  give  to  the  solution  of  every 
governmental  problem  the  best  efforts  of  a  broad 
and  well-trained  mind  prompted  and  spurred  by  a 
loving  and  generous  heart. 


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